“As Republicans in the General Assembly weigh seeking a repeal of the Racial Justice Act, the first two post-conviction cases to be considered under the 2009 law reached a courtroom in Forsyth County Thursday.

Superior Court Judge William Z. Wood Jr. opened hearings on whether racial bias played a role in the death sentences given Errol Moses and Carl Moseley, both of whom have been on death row since the 1990’s. If the judge finds that racial bias tainted their cases, the law requires that their sentences be converted to life in prison without the possibility of parole.

But more than the fate of the two men is at stake. The Racial Justice Act itself may be in jeopardy. Forsyth County prosecutors, led by District Attorney Jim O’Neill, are using the opening cases to question the constitutionality of the law. O’Neill contends that it is unconstitutional because it overly broad and punishes prosecutors in one jurisdiction for the actions of prosecutors in another.

“It’s unconstitutional because our neutral and systematic approach to death-penalty cases can be thrown in the trash based upon what some other DA in some other county in some other part of the state is doing about his death-penalty cases,” O’Neill said a Jan. 23 story published in the Winston-Salem Journal.

Ken Rose, an attorney for the defendants, said that a district attorney does not have standing to challenge the constitutionality of a law aimed at a statewide problem.

Judge Wood plans to hold a hearing on the law’s constitutionality Feb. 7. Should he agree with prosecutors, the Racial Justice Act – and the cases of more than 100 death row inmates who have applied for review under it – would be effectively repealed. Rose, an attorney with the Center for Death Penalty Litigation Inc., said a ruling striking down the law would be appealed to the N.C. Supreme Court.”